France - Code of Civil Procedure - Book IV - Arbitration (14 May 1981)

Transcription

1 1 France - Code of Civil Procedure - Book IV - Arbitration (14 May 1981) 2 Title I - The Arbitration Agreement 3 Chapter I. - The Arbitration Clause Article 1442 An arbitration clause is an agreement by which parties to a 4 5 contract undertake to submit to arbitration any disputes that may arise in relation thereto. Article 1443 To be valid, an arbitration clause shall be in writing and 6 7 included in the contract or in a document to which it refers. To be valid, an arbitration clause shall furthermore appoint 8 the arbitrator or arbitrators, or provide for the method of their appointment. Article 1444 If a dispute has arisen and problems occur with regard to the 9 10 constitution of the arbitral tribunal due to the behavior of a party or to the implementation of the appointment method, the arbitrator or arbitrators shall be appointed by the President of the Tribunal de Grande Instance. The appointment shall be made by the President of the 11 Tribunal de Commerce if the parties expressly so agree. If the arbitration clause is manifestly null and void or 12 insufficient to constitute an arbitral tribunal, the President shall so determine and declare that there is no basis for

2 appointment. Article 1445 The dispute shall be submitted to the arbitral tribunal either jointly by the parties or by the interested party. Article 1446 If an arbitration clause is null and void it shall be considered not to have been written. Chapter II. - The Submission Agreement Article 1447 By a submission agreement the parties submit an existing dispute to the arbitration of one or more persons. Article 1448 To be valid, a submission agreement shall mention the subject matter of the dispute. To be valid, a submission agreement shall furthermore 22 appoint the arbitrator or arbitrators or provide for the method of their appointment. A submission agreement is null and void if an arbitrator 23 appointed therein fails to accept his mission. Article 1449 A submission agreement shall be in writing. It may be contained in the minutes of a meeting of the arbitrators and the parties, signed by them. Article 1450 The parties may conclude a submission agreement even 26 27

3 when they have already submitted their dispute to another jurisdiction. Chapter III. - Generally Applicable Rules Article 1451 Only physical persons in the full enjoyment of their civil rights may act as arbitrators. If the arbitration agreement appoints a legal person as 31 arbitrator, its powers are limited to organizing the arbitration. Article 1452 An arbitral tribunal is not constituted until the arbitrator or arbitrators accept their mission. If an arbitrator supposes that a ground for his challenge may 34 exist he shall so inform the parties and may accept his mission only with their consent. Article 1453 An arbitral tribunal shall consist of one or an uneven number of arbitrators. Article 1454 If the parties provided for an even number of arbitrators, an additional arbitrator shall be chosen either in accordance with the agreement of the parties or, in the absence thereof, by the appointed arbitrators or, if they fail to agree, by the President of the Tribunal de Grande Instance. Article 1455 If a physical or legal person is charged with the organization 39 40

4 of the arbitration, the mission of arbitrator shall be conferred upon one or more arbitrators accepted by all the parties. Failing such acceptance, the person charged with the 41 organization of the arbitration shall invite each party to appoint an arbitrator and if necessary proceed to the appointment of an additional arbitrator to complete the arbitral tribunal. If the parties fail to appoint an arbitrator, the person charged with the organization of the arbitration shall make the appointment. The arbitral tribunal may also be constituted directly in 42 accordance with the method set forth in the preceding paragraph. The person charged with the organization of the arbitration 43 may provide that the arbitral tribunal shall only render a draft award and that the dispute shall be submitted to a second arbitral tribunal if one of the parties objects to this draft. In such case the person charged with the organisation of the arbitration shall appoint the members of the second arbitral tribunal; each party may request the replacement of one of the arbitrators so appointed. Article 1456 If no time limit is fixed in the arbitration agreement for the arbitrators' mission it shall be six months from the day on which the last arbitrator accepts his mission. The statutory or contractual time limit for the arbitrators' 46 mission may be extended at the request of a party or of the arbitral tribunal by the President of the Tribunal de Grande Instance, or, in the case envisaged by Art , of the Tribunal de Commerce.

5 Article 1457 In the cases envisaged by Arts. 1444, 1454, 1456 and the President of the Tribunal shall at the request of a party or of the arbitral tribunal decide in summary proceedings ( référé ), by court order against which no recourse is available. Appeal is nevertheless open against this order if the 49 President refuses to make the appointment for one of the reasons set forth in Art The institution, conduct and decision of this appeal procedure shall be the same as for disputes regarding competence. The President of the Tribunal designated in the arbitration 50 agreement shall be competent, or, in the absence of such designation, the President of the Tribunal of the place where the arbitration agreement has situated the arbitration. In the silence of the arbitration agreement, the President of the Tribunal of the place where the defendant to the incident, or one of them, resides shall be competent or, if no defendant resides in France, the President of the Tribunal of the claimant's place of residence. Article 1458 If a dispute pending before an arbitral tribunal on the basis of an arbitration agreement is brought before a State court, it shall declare itself incompetent. If the dispute is not yet before an arbitral tribunal, the State 53 court shall also declare itself incompetent, unless the arbitration agreement is manifestly null and void. In neither case may the State court declare itself 54 incompetent at its own motion.

6 Article 1459 Any stipulation or agreement contrary to the provisions of the present chapter shall be deemed not to have been written. Title II - The Arbitral Procedure Article 1460 The arbitrators shall determine the arbitration procedure; they shall not be bound by any rules applicable in court proceedings unless the parties have provided otherwise in the arbitration agreement. The guiding principles of procedure set forth in Arts. 4 to 10, and 13 to 21 shall at all times apply to the arbitration procedure. 1 If a party is in the possession of an element of proof, the 61 arbitrator may order him to produce it. Article 1461 Procedural orders and records of proceedings shall be made by all the arbitrators jointly unless the parties agree that such tasks may be delegated to one arbitrator. Third parties shall be heard without taking oath. Article 1462 The arbitrators shall proceed with their mission until it is completed. An arbitrator shall only be removed with the parties' 67 unanimous consent. Article

7 An arbitrator shall not withdraw or be challenged except on a 69 ground revealed or arising after his appointment. Any difficulties in the application of the present Article shall 70 be brought before the President of the competent Tribunal. Article 1464 Unless the parties have specifically agreed otherwise the arbitral procedure shall end: upon an arbitrator's removal, death, incapacity or loss of civil 73 rights; upon the withdrawal or challenge of an arbitrator; upon expiration of the time limit for the arbitral procedure. Article 1465 Arts. 369 to 376 apply to interruptions in the arbitral procedure. 2 Article 1466 If a party challenges in the arbitration the existence or scope of the arbitrator's jurisdiction, the arbitrator shall decide on the issue. Article 1467 Unless the parties agree otherwise, the arbitrator shall have the power to decide on incidents regarding the verification of handwriting or the forgery of documents, in accordance with Arts. 287 to 294 and Art Art. 313 shall apply to an incident regarding the forgery of 82 documents in an arbitral procedure. 4 The arbitral procedure shall be suspended until the decision in the incident is taken.

8 Article 1468 The arbitrator shall fix the date on which the deliberations begin. After that date no more claims or arguments shall be 85 introduced. No party shall produce further comments or documents unless at the request of the arbitrator. Title III - The Arbitral Award Article 1469 The arbitrators' deliberations are secret. Article 1470 The arbitral award is rendered by majority. Article 1471 The arbitral award shall summarize the parties' respective claims and the arguments on which they are based. The decision of the arbitrators shall give the reasons for 93 which it is given. Article 1472 The arbitral award shall contain: the names of the arbitrators; the date on which it was rendered; the place where it was rendered; the family name and given names or corporate denomination of the parties, as well as their domicile or social seat; the name of the parties' lawyers or of any person who 100

9 represented or assisted them. Article 1473 The award shall be signed by all the arbitrators. If a minority refuses to sign, the other arbitrators shall mention this in the award, which shall then have the same effect as if it had been signed by all arbitrators. Article 1474 The arbitrator shall decide the dispute according to the rules of the law unless the parties had authorized him in the arbitration agreement to decide as amiable compositeur. Article 1475 When the award is rendered, the jurisdiction of the arbitrator ceases to exist with regard to the dispute it decides. However, the arbitrator has the power to interpret the 108 award, to correct any error and material omission affecting it and to supplement it in case he has omitted to decide on an element of the claim. The Arts. 461 to 463 shall apply. 5 If it is impossible to reconvene the arbitral tribunal this power shall lie with the court or tribunal that would have been competent in the absence of the arbitration agreement. Article 1476 The arbitral award has force of res judicata with regard to the dispute it decides at the moment it is rendered. Article 1477 An arbitral award can only be enforced if exequatur is

10 granted by the Tribunal de Grande Instance in whose territory it was rendered. For this purpose one of the arbitrators or the interested 113 party shall deposit the award, together with a copy of the arbitration agreement, at the registry of the competent court. Article 1478 The exequatur is recorded on the arbitral award. The court order refusing exequatur shall contain reasons. Article 1479 The rules for the provisional enforcement of court judgments shall apply to arbitral awards. In case of appeal or an action for setting aside the First 119 President or the magistrate in charge of the case may grant exequatur of an arbitral award that has been declared provisionally enforceable. He may also declare an arbitral award provisionally enforceable, subject to the conditions of the Arts. 525 and 526, and his decision shall have the force of exequatur. 6 Article 1480 An arbitral award is not valid unless it complies with the requirements of Arts , 1472 inasmuch as the names of the arbitrators and the date of the award are concerned, and Title IV - Means of Recourse Article

11 Opposition and pourvoi 7 en cassation 8 are not available 124 against arbitral awards. Tierce opposition may be instituted against the arbitral 125 award before the court or tribunal that would have had jurisdiction in the absence of an arbitration agreement, subject to Art Article 1482 Appeal is available against an arbitral award unless the parties have waived this possibility in the arbitration agreement. No appeal is available if the arbitrator is authorized to decide as amiable compositeur, unless the parties reserve the possibility of appeal expressly in the arbitration agreement. Article 1483 If the parties have not waived the possibility of appeal as provided in Art or if they have reserved it expressly in the arbitration agreement, only appeal shall be possible, be it for revision or for annulment of the award. The court shall decide as amiable compositeur if the arbitrator was so authorized. Article 1484 If the parties have waived the possibility of appeal as provided in Art or if they have not reserved it expressly in the arbitration agreement, the action for setting aside is possible, despite any stipulation to the contrary. The action for setting aside may be based only on the 132 following grounds: 1. if the arbitrator has rendered his decision in the absence 133

12 of an arbitration agreement or on the basis of an arbitration agreement that is invalid or that has expired; 2. if the arbitral tribunal was irregularly constituted or the 134 sole arbitrator irregularly appointed; 3. if the arbitrator has not rendered his decision in 135 accordance with the mission conferred upon him; 4. if due process 10 has not been respected; 5. in all cases of nullity provided in Art. 1480; 6. if the arbitrator has violated a public policy rule. Article 1485 If the court in an action for setting aside sets the award aside, it shall decide the substance of the dispute in accordance with the mission of the arbitrator, unless the parties agree otherwise. Article 1486 Appeal and setting aside procedures shall be brought before the court of appeal of the place where the arbitral award was rendered. These procedures may be instituted from the moment the 143 arbitral award is rendered; they shall no longer be admissible if they have not been instituted within one month from the date the exequatur of the award is notified. The time limit for these procedures suspends the execution 144 of the arbitral award. Institution of one of these procedures within the time limit also has a suspensive effect. Article

13 The appeal and setting aside procedures shall be instituted, 146 conducted and decided according to the rules for court of appeal procedures. The characterization of the procedure by the parties at the 147 moment it is instituted may be modified or specified until the court of appeal is seized of the matter. Article 1488 No recourse is available against an order granting exequatur. However, an appeal or setting aside procedure, within the 150 limits of the case before the court, entails ipso jure recourse against the order of the enforcement court or termination of the action before it. Article 1489 Appeal is possible against an order refusing exequatur within one month from its notification. The court of appeal shall, at the request of the parties, consider such grounds as they could have invoked in an appeal or setting aside procedure against the arbitral award. Article 1490 Upon rejection of the appeal or the action for setting aside, the arbitral award or the parts thereof not affected by the decision of the court obtain exequatur. Article 1491 Recours en révision is available against arbitral awards in the same cases and under the same circumstances as against court decisions.

14 The action is brought before the court of appeal competent 157 for the other means of recourse against arbitral awards. Title V - International Arbitration Article 1492 An arbitration is international if it implicates international commercial interests. Article 1493 An arbitration agreement may, directly or by reference to arbitration rules, appoint the arbitrator or arbitrators or provide for the method of their appointment. If in an arbitration taking place in France or subjected by the 163 parties to French procedural law difficulties arise in the constitution of the arbitral tribunal, the interested party may bring the matter before the President of the Tribunal de Grande Instance of Paris as provided in Art. 1457, unless the parties agree otherwise. Article 1494 An arbitration agreement may, directly or by reference to arbitration rules, determine the arbitral procedure or subject to any procedural law. If the arbitration agreement is silent the arbitrator shall 166 determine the procedure inasmuch as necessary, either directly or by reference to a law or to arbitration rules. Article 1495 If an international arbitration is subject to French law, the provisions of Titles I, II and III of this Book apply only if the parties have not made any specific agreement, and subject

15 to Arts and Article 1496 The arbitrator shall decide the dispute in accordance with the rules of the law chosen by the parties or, in the absence of such choice, in accordance with the rules of the law he considers appropriate. In all cases he shall take the usages of the trade into 171 consideration. Article 1497 The arbitrator shall decide as amiable compositeur if he is so authorized in the arbitration agreement. 174 Title VI - Recognition, Enforcement and Means of Recourse with Regard to Arbitral Awards Rendered Abroad or in International Arbitration 175 Chapter I. - The Recognition and Enforcement of Arbitral Awards Rendered Abroad or in International Arbitration Article 1498 Arbitral awards shall be recognized in France if the party relying on them establishes their existence and if this is not manifestly contrary to international public policy. Under the same conditions arbitral awards shall be declared 178 enforceable in France. Article 1499 The existence of an arbitral award shall be established by

16 producing the original thereof together with the arbitration agreement, or authentic copies of these documents. If these documents are not in French, the party concerned 181 shall provide a certified translation by a court-registered translator. Article 1500 Arts to 1479 shall apply Chapter II. - Means of Recourse Against Arbitral Awards Rendered Abroad or in International Arbitration Article 1501 The court decision refusing recognition or enforcement is subject to appeal. Article 1502 Appeal of a court decision granting recognition or enforcement is only available on the following grounds: 1. if the arbitrator has rendered his decision in the absence 189 of an arbitration agreement or on the basis of an arbitration agreement that is invalid or that has expired; 2. if the arbitral tribunal was irregularly constituted or the 190 sole arbitrator irregularly appointed; 3. if the arbitrator has not rendered his decision in 191 accordance with the mission conferred upon him; 4. if due process 11 has not been respected; 5. if recognition or enforcement is contrary to international public policy.

17 Article 1503 The appeal of Arts and 1502 is brought before the court of appeal in the resort of which the enforcement court is located, within one month from the notification of its decision. Article 1504 The action for setting aside is available against arbitral awards rendered in France in international arbitration, on the grounds of Art No recourse is available against court orders granting 198 exequatur of such awards. However, the setting aside procedure, within the limits of 199 the case before the court, entails ipso jure recourse against the order of the enforcement court or termination of the action before it. Article 1505 The setting aside procedure of Art is brought before the court of appeal of the place where the arbitral award is rendered. It may be instituted from the moment the arbitral award is rendered; it shall no longer be admissible if it has not been instituted within one month from the date the exequatur of the award is notified. Article 1506 The time limit for the procedures of Arts. 1501, 1502 and suspends the execution of the arbitral award. Institution of one of these procedures within the time limit has the same suspensive effect. Article

18 The provisions of Title IV of this Book shall not apply to recourse proceedings, with the exception of Arts and 1490.